Pentagon envisions up to 7 more Guantánamo trials

The flag flying over the war court complex, Camp Justice, as seen through a broken abandoned air hangar window at the U.S. Navy base at Guantánamo Bay, Cuba, on Feb. 28, 2015, in an image approved for release by the U.S. military.
CAROL ROSENBERG
MIAMI HERALD

Pentagon officials envision prosecuting at most seven more Guantánamo captives, the most notorious among them an Indonesian man known as Hambali who was once considered the CIA’s most wanted terrorist in Southeast Asia, according to just released documents.

That means that, of the 122 captives currently at Guantánamo, at most 17 could be accused of war crimes.

The long-range vision for trials through 2019 was included in a 362-page release of internal discussions surrounding a since abandoned plan to base judges permanently at the remote U.S. Navy base.

War court prosecutors had argued that the documents were privileged, but a judge, Air Force Col. Vance Spath, reviewed them and ruled they could be released.

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Six captives’ names appear on a chart circulated on Oct. 31 in a discussion of resourcing the future of the war court. Three weeks later, the chief war crimes prosecutor, Army Brig. Gen. Mark Martins, wrote in a memo that Hambali was “inadvertently omitted” from the list of war crimes trial candidates that included two alleged Malaysians accomplices.

A Pentagon spokesman, Army Lt. Col. Myles B. Caggins III, declined to say Thursday whether any of the proposed prosecutions might be death-penalty cases. Nor would he say whether prosecutors envisioned a joint trial of Hambali and the other two men, or whether recent public revelations in the so-called Senate Intelligence Committee “Torture Report” complicated the plans.

Agents stripped, shackled and deprived Hambali of sleep to soften him up for his 2003 interrogations, according to a public portion of the report, and an interrogator subsequently told him he would never have his day in court “because ‘we can never let the world know what I have done to you.’”

More details of his treatment are likely contained in the portion of the Senate report being sought by defense lawyers in Guantánamo’s Sept. 11 and USS Cole prosecutions, still in the pretrial phase.

After Hambali’s capture in August 2003, President George W. Bush called him “one of the world’s most lethal terrorists” and said that he was “suspected of planning major terrorist operations” — notably an al-Qaida affiliate’s 2002 bombing of a nightclub in the Indonesian resort of Bali that killed 202 people.

But the Senate report quotes a November 2003 CIA cable as saying “Hambali’s role in al-Qaida terrorist activity was more limited than the CIA had assessed prior to his capture.” Also, it said, al-Qaida members thought him incapable of “leading an effort to plan, orchestrate and execute complicated operations on his own.”

The others listed as prosecution candidates are:

▪ Yemenis Abdu Ali Sharqawi, 40, who has been profiled by the military as a former recruiter of bodyguards for Osama bin Laden known as “Riyadh the Facilitator,” and Sanad al Kazimi, 45, who was profiled as a Bin Laden bodyguard. Both men got to Guantánamo in September 2004 as low-value detainees after months in CIA custody.

▪ Afghan Abdul Zahir, in his early 40s, who during the Bush administration was accused of helping the Taliban and al-Qaida attack civilian and coalition targets in Afghanistan. The charges were dropped.

▪ Egyptian Tariq Mahmoud el Sawah, 57, who was approved for release from U.S. military custody just last month, suggesting a trial has since been ruled out. A national security parole board called Sawah “one of the most compliant” captives at the U.S. Navy base prison in Cuba, and made no mention of alleged war crimes in its decision to clear him.

Not all seven men who might be tried have Pentagon-appointed defense attorneys, the Chief Defense Counsel Air Force Col. Karen Mayberry said Thursday, in part because the names of possible candidates for war crimes trials have changed through the years.

In early 2012, Mayberry said, the prosecution envisioned possibly 30 more trials — including the Sept. 11 case.

“There have been multiple lists during my tenure, and they don’t always match, which is what makes detailing counsel difficult,” Mayberry said.

The planning surrounded a Pentagon effort to cut resources to both the prosecution and defense, and add more experienced staff to the trial judiciary. Mayberry and Martins resisted proposed cuts in lengthy memos that described the complexity of litigating at the court that was created by Bush and reformed by President Barack Obama, and are still working out which portions of the U.S. Constitution apply.

Meantime, Hambali has no attorney.

Some federal public defenders who had earlier represented him, and filed a habeas corpus challenge that has not been considered, stepped down from his case last year. An Army lawyer at the prison in Cuba asked a federal judge in Washington, D.C., to assign him one in September. But as of this week Judge John Bates, who has the case, has not assigned one.

Ten captives already have military commissions cases, including six men awaiting death penalty trials as the alleged 9/11 and USS Cole attack plotters.

The others include an Iraqi man who allegedly commanded al-Qaida forces in Afghanistan and two men who pleaded guilty in exchange for eventual release from Guantánamo — including a U.S.-educated Pakistani man who might be used as a Hambali trial witness.

The 10th man, Yemeni Ali Hamza al Bahlul, who created an al-Qaida recruiting video, is Guantánamo’s lone convicted war criminal. Pentagon-paid defense lawyers are appealing his conviction, and already got a part of it overturned.

The others are held as war prisoners in a variety of categories, and include 56 men who are approved for release but waiting for the State Department to find places to safely send them.

“The government is likely to swear charges in Military Commissions against certain detainees first identified for potential prosecution by the Guantánamo Review Task Force that was formed under Executive Order 13492 of 2009. This decision to do so will be based upon applicable law and a careful review of available evidence in a particular case. Any new prosecutions under the Military Commissions Act will be announced upon swearing and endorsement of the charges by the Chief Prosecutor or upon referral of those charges by the Convening Authority.” ▪ Lt. Col. Myles B. Caggins III, Defense Department spokesman for Military Commissions